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For an in-depth analysis of your personal injury claim, call Donald R. Smith & Associates at (561) 622-2700.

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In an recent opinion filed on July 21, 2019, from the 5^th District Court of Appeal in Florida, the Court re-affirmed that the open and obvious doctrine “does not completely discharge the property owner’s duty to maintain the premises in a reasonably safe condition”. Parker v. Shelmar Property Owner’s Association, Inc., et. al., No. 5D18-2105 (Fla. 4^th DCA. June 21, 2019); see Trainor v. PNC Bank, N.A., 211 So. 3d 366, 368 (Fla. 5^th DCA 2017). This ruling may not be new to injury attorneys but it is particularly important in a premises liability injury case when a Defendant moves for Summary Judgment because the hazard is argued to be open and obvious. In Parker, Plaintiff sustained injuries when she tripped on a wheel stop in Defendant’s parking lot which was, arguably, open and obvious. Plaintiff alleged that Defendant had a duty to maintain the premises in a reasonably safe condition and that the specific placement of the wheel stop breached that duty, resulting in her injury. Defendant moved for Summary Judgment as a matter of law, pursuant to the open and obvious doctrine. The Circuit Court for Seminole County granted Summary Judgment. However, the 5^th DCA reversed, finding that “when an injured party alleges a breach of the duty to maintain the premises in a reasonably safe condition, factual issues frequently exist ‘as to whether the condition was dangerous and whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact that it was open and obvious.’” Aaron v. Palatka Mall, LLC, 908 So.2d 574, 578 (Fla. 5^th DCA 2005); see also Burton v. MDCPGA Plaza Corp., 78 So.3d 732 (Fla. 4^th DCA 2012). While this ruling is not new, it is critically important to effective representation of our injury clients. As in Parker, utilizing the right expert can greatly help overcome Summary Judgment in these cases, especially if the hazard violates industry safety standards. If you have sustained injuries due to an unsafe, hazardous, or defective condition on someone else’s property, call our office for a free consultation.

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Author: Brandon D. Smith, Esq.

It is sometimes the case that, following an accident, evidence goes missing, is misplaced
or discarded, or, in the more egregious cases, is intentionally destroyed or discarded. This could
be as a result of a business policy of only holding and/or storing surveillance film for a
maximum of 3-days, after which the surveillance film is automatically discarded. Thus, it is good
legal practice to send opposing counsel a non-spoliation letter if the sought-after evidence is
and/or could be deemed to be of a temporary life-span or could possibly be destroyed by its very
nature (such as the surveillance film mentioned above). But what is a Non-Spolitation Letter? A
non-spoliation letter is a legal tool attorneys use to put your legal adversary on notice of specific
evidence or types of evidence to preserve for litigation, and subsequently for trial. The term
“Spoliation” means to tamper with, destroy, modify, reduce, convert, or alter in any way, shape,
or form, a particular type or piece of evidence as the evidence was in its true organic original
form. Preserving evidence is important for trial, and preserving a specific type or piece of
evidence can make a huge difference in your lawsuit.

In the same vein, non-spoliation letters can be hybrid in nature. Sometimes I do not know
exactly what the evidence is going to be because the discovery phase of that particular case is
still in its early stages. However, in other cases, after I have legally analyzed a case based on its
merits and legal theories, I will want to mention and delineate specific evidence to be preserved.
These include vehicle black boxes in wrongful death cases, surveillance film in slip-and-fall
cases, corporate meeting minutes of board members in ultra-hazardous equipment cases,             specific sharp objects, training manuals and/or safety procedures in hotel premises liability cases, and time sheets and other business records kept in the regular course of business in cases involving a shooting and premises liability (as well as many other types of evidence).

There are no set formulae or indices for how to craft these types of letters, or what specific evidence one should include. These types of letters are crafted on a case-by-case basis depending on your case’s specific facts, legal theories, possible affirmative defenses, and even the far-sighted legal strategy for trial. For the reasons set forth hereinabove, it is critical to hire an attorney that is experienced in prosecuting personal injury claims.

For a free consultation and
case evaluation, call us now at (561) 622-2700.

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1. Adequate Forum in Another State;
2. Private Interests;
3. Public Interests; and
4. Prejudice, or Undue Inconvenience.

Typically, in the scenario of being on vacation in another U.S. state, but residing in Florida, the first prong is met, as either forum could be adequate. This may change depending on where the accident takes place, however. In the author’s experience, the Court most commonly focuses on the 2nd prong, which could be the most important inquiry. In the case of an out-of-state injured claimant living in Florida, the Court will examine a wide spectrum of factors, which are not all-inclusive. In a recent case I handled, several factors I argued were access to evidence, witnesses, availability of the premises, resources of the parties, and costs, all of which fell within and affected “private interests.” However, as I mentioned earlier, there are many more factors that could apply to this prong, depending on the fact pattern.

In many cases, the Court may find that the 2nd prong factors do not favor either party, but rather the factors are in “equipoise,” or equal. In this scenario, the Kinney case makes it clear that the Plaintiff’s choice of forum must not be disturbed. This is what occurred in my recent Hearing, and the Court did not bother considering the 3rd and 4th prong, as it was not necessary. I should also mention that the Court DENIED Defendant’s Motion to Dismiss based on Forum Non Conveniens, almost solely because of the factors that fell within the 2nd prong. That was a huge relief for our clients who live and reside in Florida. In other cases, however, if the at-fault party Defendant overcomes the 1st and 2nd prongs, the Court would be required to examine the 3rd and 4th prongs to determine if the Defendant met their burden of proof.

Why is this important, and why should this matter to you? Litigating a case in a foreign forum is extremely expensive, stressful, time-consuming, and can possibly prejudice your case. Litigating a case in your home State of Florida is quite the opposite: medical treatment in Florida, residency in Florida, legal counsel in Florida, before-and-after witnesses in Florida, Florida judges, Florida jury, and taxes paid to Florida to provide for Floridian court access.

Therefore, if you are in an accident in a foreign State or foreign country, contact our law Office immediately for a free legal consultation that will examine your unique fact pattern. We understand the equities that favor keeping your case in Florida, and we will fight for you and your family.

-Brandon D. Smith, Esq.

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Smith, Gaskill & Shenkman, P.A., partnered with Operation Hope for their annual “Keeping Dreams Alive” toy drive! The firm was proud to have a collection bin inside of the office and excited to welcome past and present clients, friends, and the community in to drop off their donations. The turn out was wonderful and the firm would like to personally thank everyone who took time out of their busy schedules to stop by and donate to such a worthy cause. The grand finale to the drive came Saturday night when Managing Partner Donald R. Smith hosted his annual Boat Parade Party! He offered to throw a bash to remember, with just one request…all guests were asked to bring a gift for the children of Operation Hope. The results were OUTSTANDING! Over 150 guests arrived happily with gifts for the underprivileged youth in our area! There were so many generous donations we were able to give a sizeable contribution to Toys for Tots as well! All Partners, Attorneys, and Staff were at the party and proud to see how successful the event was. This morning the Personal Injury Team gathered the gifts and hand delivered them to Operation Hope where Mr. Ken Bowers and his team were overwhelmingly grateful. The toys will be distributed to the children this Saturday at Operation Hope, stay tuned for photos of the children receiving their gifts. Thank you again for helping us make this a success!

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The Personal Injury Attorneys at Smith, Gaskill & Shenkman, P.A.,( including Managing Partner, Donald Smith, Senior Attorney, Brooke Grogan, and Associate Attorney, Brandon Smith) partnered with Operation Hope last night and distributed over 300 Thanksgiving turkeys and sides to homeless and low income families in the Lake Park and Riviera Beach communities! Hundreds of people lined up at Operation Hope to collect their meals, including young children, families, and wheelchair-bound veterans. The need was great this year- even after distributing over 300 meals, there were many families still in line. Senior Attorney Brooke Grogan stated “the most rewarding aspect of the Turkey Drive was knowing that we made a difference in the lives of over 300 people.” All that were in attendance last night were profoundly touched and humbled to be present at such an inspiring event for such a worthy cause. Managing Partner Donald Smith expressed that “the real purpose of Thanksgiving is the giving.” Operation Hope is a local non-profit organization founded by Executive Director, Kenneth Bowers, 1989. Operation Hope provides emergency, transitional, and/or permanent housing and essential supportive services to homeless men, women, and children and assists them in becoming independent and productive citizens in society. We would like to personally thank the volunteers that came who helped make this event a success! We would also like to extend our sincere gratitude to Mr. Kenneth Bowers, Pastor Nelson, and Ms. Sheila for allowing us to partner with them in this extraordinary event.

 

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• Publix and Winn Dixie are offering Butterball Turkeys for $9.99 if you specify that they are to be donated to Operation Hope!
• Canned goods, gift cards, and monetary donations are welcome to be dropped off at our office Monday-Friday from 9am-5pm! Our address is 11891 U.S. Hwy 1 N # 100, North Palm Beach, FL 33408
• If you are interested in donating a turkey, pie, or item that needs to be frozen or refrigerated please kindly drop them off at Operation Hope, the address is 1253 10th St, Lake Park, FL 33403.
• Volunteers are needed the night of November 19, 2018 at 7:00pm to help distribute the Thanksgiving care packages!

We would love your help in making Operation Hope’s goal a reality. If you have any further questions please call our office 561-622-2700. We look forward to helping give hundreds of families something special to be thankful for this Thanksgiving!

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